assigns, or his or their executors or administrators, to sue out a writ of scire facias from the clerk's office of the circuit court of the county in which the said mortgaged premises may be situated, or any part thereof, directed to the sheriff or other proper officer of any county or counties where the defendants, or any of them, may reside or be found, requiring him to make known to the mortgagor, or, if he be dead, to his heirs, executors or administrators, to show cause, if any they have, why judg ment should not be rendered for such sum of money as may be due, by virtue of said mortgage; and upon the appearance of the party named as a defendant in said writ of scire facias the court may proceed to judgment as in other cases, but if said scire facias be returned nihil, or that the defendant is not found, an alias scire facias may be issued.

[Declaration unnecessary. See "Practice," ch. 110, § 27. R. S. 1845, P. 304. § 23; Cottingham v. Springer, 88 III. 93; Errickson v. Rafferty, 79 Ill. 212; Henderson v. Palmer, 71 Ill. 579; Gautzert v. Hoge, 73 Ill. 30; Marshall v. Maury, 1 Scam, 231; McFadden v. Fortier, 20 Ill. 509; Osgood v. Stevens, 25 Ill. 89: Rockwell v. Jones, 21 Ill. 286; Menard v. Marks, 1 Scam. 25; Swiggart v. Harber, 4 Scam. 364: McCumber v. Gilman, 13 Ill. 542; Russell v. Brown, 41 Ill. 183; Day v. Cushman, 1 Scam. 475 Osgood v. tevens, 25 Ill. 89; Woodbury v. Manlove, 14 Ill. 213; Gilbert v. Maggord, Scam. 471; Leonard v. Villars, 23 III. 377; Camp v. Small, 44 Ill. 38; Bourland v. Kipp, 55 ill. 376; Winchell v. Edwards, 57 ill. 41: Olds v. Cummings, 31 Ill. 188; Morgenstern v. Klees, 30 Ill. 422; Winkelman v. Kiser, 27 Ill. 21: Walker v. Dement, 42 Ill. 279; Smith v. Newton, 38 Ill. 230; Weaver v. Wilson, 48 Ill. 125; Sumner v. Waugh, 56 Ill. 531; Harris v. Mills, 28 Ill. 44; Gibson v. Rees, 50 Ill. 405; Rockwell v. Jones, 21 Ill. 279; Davis v. Conn, M. Life Ins. Co., 84 Ill. 508.

18. Notice by publication and mail. 18. If a defendant is a non-resident, or hath gone out of the State, or on due inquiry cannot be found, or is concealed within the State, or evades the service of process, the plaintiff or his attorney may file affidavit in the same form as in like cases in chancery, and notice may be given as in such case.

19. Judgment. § 19. If the defendant appear and plead or set up any defense, or make default after having been served with scire facias or notified as aforesaid, the court may proceed to give judgment, with costs, for such sum as may be due by said mortgage, or appear to be due by the pleadings, or after the defense, if any be made.

[R. S. 1845, P. 304. § 23; Marshall v. Many, 1 Scam. 231; Swiggart v. Harber, 4 Scam. 364; Rockwell v. Jones, 21 Ill. 287; Osgood v. Stevens, 25 Ill 89: State Bank v. Wilson, 4 Gilm. 57; Chickering v. Failes, 26 Ill. 507: Kruse v. Scripps, 11 Ill. 104; Matteson v. Thomas, 41 l. 114; Kenyon v. Schreck, 52 Ill. 383; Bradley v. Snyder, 14. 264: Pope v. North, 33 Ill. 440; Ellis v. Southwell, 29 Ill. 549 Hogden v. Guttery, 58 Ill. 431; Sheldon v. Patterson, 55 !ll. 507; Johnson v. Donnell, 15 I. 97; Wilson v. Geisler, 19 Ill. 49; Vansant v. Allmon, 23 Ill. 33; Stephens v. Bicknell, 27 Ill. 446; Horner v. Zimmerman, 45 l. 15; Russell v. Brown, 41 Ill. 183; Camp v. Small, 44 Ill Williams v. Ives, 49 Ill. 512; Wayman v. Cochran, 35 I 155; Clawson v. Munson, 55 Ill. 304; Conw 11 v. McGowen, 53 Ill. 363; Carr v. Fielder, 18 Ill. 81; Lucas v. Harris, 20 Ill. 169 ; Gaff v. Harding, 48 Ill. 150.

39;

20. Set-off, etc. $ 20. The defendant may plead or set off any defense, and be allowed to set off a demand in his favor, in the same manner, and the same rules shall apply thereto, as if the suit were in any other form of action.

[For what defenses might be made before this section, see Henderson v. Palmer, 71 Ill. 579; McFadden v. Fortier, 20 Ill. 509; Woodbury v. Manlove, 14 Ill. 213; Hall

v. Byrne, Scam. 140; Camp v. Small, 44 Ill. 39; Carpenter v. Mooers, 26 Ill. 162; Smith v Newton, 38 Ill. 230; Weaver v. Wilson, 48 Ill. 125; Miller v. Markle, 21 Ill. 152; Winston v. McFarland, 22 Ill. 38.

21. Special execution-lien. § 21. The mortgaged premises may be sold to satisfy any judgment the plaintiff in such action may recover, and the court may award a special writ of fieri facias for that purpose, to the county or counties in which said mortgaged premises may be situate, and on which the like proceedings may be had as in other cases of execution levied upon real estate: Provided, however, that the judgment aforesaid shall create no lien on any other lands or tenements than the mortgaged premises, nor shall any other real or personal property of the mortgagor be liable to satisfy the same; but nothing herein contained shall be so construed as to affect any collateral security given by the mortgagor for the payment of the same sum of money, or any part thereof, secured by the mortgage deed.

[R. S. 1845, P. 304, § 23: Aldrich v. Sharp, 3 Scam, 264; Lawrence v. Lane, 4 Gilm. 383; Lloyd v. Kairns, 45 Ill. 63; Brush y. Fowler, 36 Ill. 53; Bruce v. Roney, 18 Ill. 74; Gilcreest v. Magill, 37 Ill. 300; Flowers v. Brown, 21

270.

22, repeal, omitted. See " Statutes," ch. 131, § 5.

POWERS OF SALE IN MORTGAGES AND TRUST DEEDS. AN ACT in relation to mortgages and trust deeds. [Approved May 7, 1879. In force July 1, 1879. L. 1879, p. 211.]

*22. Trust deeds and mortgages containing power of sale to be foreclosed as other mortgages only. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That no real estate within this State, shall be sold by virtue of any power of sale, contained in any mortgage, trust deed or other conveyance in the nature of a mortgage, executed after the taking effect of this act; but all such mortgages, trust deeds or other conveyances in the nature of a mortgage, shall only be foreclosed, in the manner provided for foreclosing mortgages containing no power of sale; and no real estate shall be sold to satisfy any such mortgage, trust deed or other conveyance in the nature of a mortgage, except in pursuance of a judg. ment or decree of a court of competent jurisdiction,

Proceedings in circuit court for
change of name.

SECTION

2. Form of petition-affidavit.
3. Notice of application.

AN ACT to revise the law in relation to names. [Approved February 25, 1874. In force July 1, 1874.]

1. Proceeding in circuit court. People of the State of Illinois, represented in the General Assembly, That SEC. 1. Be it enacted by the if any person, being a resident of this State, and having resided therein six months next preceding the term of court at which the relief herein provided for is sought to be obtained, shall desire to change his name, and to assume another name by which to be afterwards called and known, such person may file a petition in the circuit court of the county wherein he shall reside, praying for such relief; and upon its appearing to the court that the conditions hereinafter mentioned have been complied with, and there appearing no reason why the prayer should not be granted, the court, by an order to be entered on its record, may direct and provide that the name of such person shall be changed in accordance with the prayer in said petition. Whenever any infant has resided in the family of any person for the space of three years, and has been recognized and known as an adopted child in the family of such person, the application herein provided for may be made by the person having such infant in his family. [L. 1859, p. 128, § 1.

2. Form of petition-affidavit. § 2. Such petition shall set forth the name then held, and also the name sought to be assumed, together with the residence of the petitioner, and the length of time he shall have resided in this State, and shall also state the State or county of his nativity, or supposed nativity, and be signed by the person petitioning, or in case of minors, by the parent or guardian having the legal custody of said minor; and said petition shall be verified by the affidavit of some credible person. [L. 1859, p. 128, § 2.

3. Notice of application. 3. Previous notice shall be given of such intended application, by publishing a notice thereof in some newspaper published in the county where such person shall reside, or if no newspaper shall be published in said county, then in some convenient newspaper published in this State; which notice shall be inserted for three consecutive weeks, the first insertion to be at least six weeks prior to the first day of the term of the court in which the said petition is to be filed, and shall be signed by the petitioner, or in case of a minor, his parent or guardian, and shall set forth the term of the court at which the petition is to be filed, and the name sought to be assumed. [L. 1859, p. 128, 3.

AN ACT to revise the law in relation to ne exeat. [Approved March 12, 1874. In force July 1, 1874.]

1. When writ may issue. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That writs of ne exeat republica may hereafter be granted, as well in cases where the debt or demand is not actually due, but exists fairly and bona fide in expectancy at the time of making application, as in cases where the demand is due; and it shall not be necessary, to authorize the granting of such writ of ne exeat, that the applicant should show that his debt or demand is purely of an equitable character, and only cognizable before a court of equity. [R. S. 1845. P. 381, § 1; Malcolm v. Andrews, 68 Ill. 100; Fisher v. Stone, 3 Scam. 68; Victor Scale Co. v. Shurtleff, 81 Ill. 313.

2. In favor of co-obligors or co-debtors. § 2. In case of joint, or joint and several obligors or debtors, if one or more of them be about to remove without the jurisdictional limits of this State, taking their property with them, leaving one or more co-obligors or co-debtors bound with them for the payment of any sum of money, or for the delivery of any article of property, or for the conveyance of land at a certain time, which time shall not have arrived at the time of such intended removal, such co-obligor or co-debtor who remains shall be entitled, upon application, to a writ of ne exeat, to compel the co-obligor or codebtor who is about to remove to secure the payment of his part of the sum to be paid, or of the delivery of the property, or to convey, or to join in the conveyance of the land. Also, in cases of security, the writ of ne exeat may issue, on application of a security, against the principal or co-security, when the obligation or debt shall not be yet due, and the principal or co-security is about removing out of the State. [R. S. 1845, p. 381, § 2.

3. What courts may issue. 3. The superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of ne exeat. [See "Courts," ch. 37, 45; R. S. 1845, p. 382, § 8.

4. Master in chancery may order. § 4. When no judge authorized to issue writs of ne exeat is present in the county, or being

present, is unable or incapacitated to act, a master in chancery in such county may order the issuing of such writs.

[R. S. 1845, p. 99, § 50; Bassett v. Bratton, 86 Ill. 153.

5. Bill or petition-bond-suit on. § 5. No writ of ne exeat shall be granted but upon bill or petition filed, and affidavit to the truth of the allegations therein contained. Upon the granting of any such writ, the court, judge or master shall indorse or cause to be indorsed upon the bill or petition, in what penalty bond and security shall be required of defendant. Said court, judge or master shall also take or cause to be taken of the complainant, before the writ shall issue, bond with good and sufficient surety, in such sum as the court, judge [* 717] or master shall deem proper, conditioned that the said complainant will prosecute his bill or petition with effect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ. If any defendant to such writ of ne exeat shall think himself aggrieved, he may bring suit on such bond; and if, on trial, it shall appear that such writ of ne exeat was prayed for without a just cause, the person injured shall recover damages, to be assessed as in other cases on penal bonds.

[R. S. 1845, p. 381, § 3; Victor Scale Co. v. Shurtliff, 81 Ill. 313: Bassett v. Bratton, 86 Ill. 153; Jones v. Kennicott, 83 Ill. 484; Malcolm v. Andrews, 68 Ill. 100; Burnap v. Wight, 14 Ill. 302.

6. Vacation, clerk directed to issue, 6. When a writ of ne exeat is granted by a judge or master in vacation, he shall direct the clerk of the court to which the writ is to be returnable to issue the same. [R. S. 1845, p. 382, § 4.

7. How returnable. § 7. All writs of ne exeat shall be returna. ble into the court out of which they issue. [R. S. 1845, p. 382, § 4.

8. Form of writ-temporary departure no breach. § 8. The writ of ne exeat shall contain a summons for the defendant to appear in the proper court, and answer the petition or bill, and upon the writ being served upon the said defendant, he shall give bond, with surety in the sum indorsed on such writ, conditioned that he will not depart the State without leave of the said court, and that he will render himself in execution to answer any judgment or decree which the said court may render against him; and in default of giving such security, he may be committed to jail, as in other cases, for the want of bail. No temporary departure from the State shall be considered as a breach of the condition of the said bond, if he shall return before personal appearance shall be necessary to answer or perform any judgment, order or decree of said court. [R. S. 1845, p. 382, 5.

9. Surrender of defendant. 9. The surety in any bond for the defendant, as aforesaid, may, at any time before the said bond shall be forfeited, surrender the said defendant, in exoneration of himself, in the same manner that bail may surrender their principal, and obtain the same discharge. [See "Bail,” etc., ch. 16, § 11, seq. ́ ́R. S. 1845, p. 382, § 6.

10. Proceedings on return of writ. § 10. On the return of the writ of ne exeat, if the same shall have been duly served, the court